BAKSH v. Ester Bueno, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Mofaz BAKSH, respondent, v. Herzel SHABI, defendant, Ester Bueno, appellant.

Decided: August 29, 2006

THOMAS A. ADAMS, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Kelly, Rode & Kelly, LLP (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, Harris J. Zakarin, and Melissa M. Murphy] of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant Ester Bueno appeals from an order of the Supreme Court, Queens County (Hart, J.), dated September 13, 2005, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Ester Bueno, and the action against the remaining defendant is severed.

Contrary to the determination of the Supreme Court, the defendant Ester Bueno, via her submissions in support of her motion, established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff failed to raise a triable issue of fact.   The plaintiff's treating physician impermissibly relied on the unsworn reports of other doctors in reaching his conclusions (see Springer v. Arthurs, 22 A.D.3d 829, 803 N.Y.S.2d 170;  Vallejo v. Builders for Family Youth, Diocese of Brooklyn, 18 A.D.3d 741, 795 N.Y.S.2d 712;  Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   Moreover, the plaintiff's treating physician failed to address either the findings of Bueno's examining radiologist, who determined that the plaintiff suffered from degenerative processes at the L-5 level of her lumbar spine, or the fact that the plaintiff was involved in a subsequent rear-end collision.   This rendered speculative his conclusion that the plaintiff's injuries and limitations were causally related to the subject accident (see Tudisco v. James, 28 A.D.3d 536, 813 N.Y.S.2d 482;  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124;  Allyn v. Hanley, 2 A.D.3d 470, 767 N.Y.S.2d 885;  Lorthe v. Adeyeye, 306 A.D.2d 252, 760 N.Y.S.2d 530).   Furthermore, the plaintiff failed to proffer competent medical evidence that connected his alleged inability to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident with the alleged accident-related injuries (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406).

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